Judge Bars Videotape as Evidence in Police Killing

By JOSEPH P. FRIED

Published: December 25, 1988

A judge has barred the prosecution from using as evidence an incriminating videotaped statement obtained from one of four men charged with the execution-style murder of a rookie police officer in Queens.

The judge ruled last week that detectives and prosecutors had obtained the statement in violation of the constitutional rights of the defendant, David McClary, 22 years old, because they had resumed questioning him without a lawyer present after he had requested - and met with - a lawyer.

Mr. McClary's current lawyer, Charles Lavine, argued in recent court hearings that the law required that ''once a lawyer enters the picture, the police are not supposed to conduct any further interrogation of the defendant unless the defendant, in the presence of counsel, waives his right not to be further questioned.''

A spokesman for the Queens District Attorney, John J. Santucci, declined to comment on the ruling. But investigators in the case said the decision was a ''blow'' to the prosecution's case.

On the tape, Mr. McClary had said that he was at the scene of the killing of the officer, 22-year-old Edward Byrne, although Mr. McClary denied he had done the shooting. Officer Byrne was killed in February in South Jamaica, while sitting alone in a patrol car guarding the firebombed home of a man who had complained about drug dealers in his neighborhood.

Investigators said other evidence against Mr. McClary remained, though they declined to say whether he had been tied to the killing by one expected proscution withess, Viola Nichols, the sister of an imprisoned major drug dealer, Lorenzo (Fat Cat) Nichols.

The judge, Justice Thomas A. Demakos of State Supreme Court, also ruled that some incriminating, nontaped statements that Mr. McClary reportedly made to a detective could be introduced at the trial because those remarks were made ''prior to the attorney entering into the picture.''

The lawyer to whom the judge was referring, David Cohen, went to the 103d Precinct station house, where Mr. McClary was being questioned after surrendering to the police several days after Officer Byrne's murder. Mr. Cohen has said he went there after Mr. McClary's girlfriend called the lawyer and after Mr. McClary, on the phone from the station, told Mr. Cohen he wanted to speak to him.

On Dec. 15, Justice Demakos ruled that videotaped statements by two other defendants, Todd Scott, 20, and Scott Cobb, 25, could be used by the prosecution at their trials. He rejected the arguments of lawyers for the statements had been obtained in violation of various constitutional rights.